Koplin v. Bennett

• Decision Date: 06 August 1963
• Docket Number: No. E-103,E-103
• Citation: 155 So.2d 568
• Parties: Lee E. KOPLIN and Carol L. Koplin, his wife, Appellants, v. Julian BENNETT, Appellee.
• Court: Florida District Court of Appeals

Page 568

155 So.2d 568

Lee E. KOPLIN and Carol L. Koplin, his wife, Appellants, v. Julian BENNETT, Appellee.

No. E-103.

District Court of Appeal of Florida, First District.

Aug. 6, 1963.

Davenport, Johnston, Harris & Urquhart, Panama City, for appellants.

Logue & Bennett, Panama City, for appellee.

STURGIS, Chief Judge.

The appellee, Julian Bennett, brought this suit against the appellants, Mr. and Mrs. Lee E. Koplin, for specific performance of an alleged agreement whereby appellants gave appellee an option to purchase certain real property.

Upon denial of their motion to dismiss the complaint for failure to state a cause of action, the defendant-appellants filed an answer admitting that they executed the alleged agreement and denying that plaintiff-appellee complied therewith. They also alleged that plaintiff did not tender or deliver to them an assignment of a certain mortgage as required by the agreement, did not tender to them the amount of money in cash as required by the agreement, gave no lawful consideration for said agreement, and induced them to execute the same by false and misleading representations as to the use to which the property was to be put in the event of the exercise of the option to purchase.

Depositions were taken of the plaintiff, of defendant Lee E. Koplin, and of one William M. Parker, a real estate salesman. Plaintiff then moved for summary judgment on the ground that the pleadings, depositions and admissions, together with an accompanying affidavit, showed there was no genuine issue as to any material fact and that plaintiff was entitled to judgment as a matter of law. A final decree was entered granting said motion and requiring defendants to convey the subject property to plaintiff in accordance with the provisions of the decree which conform, generally, to the terms and conditions of the alleged agreement, hence this appeal.

The sole point for determination is whether or not it was error to enter summary judgment. As a corollary thereto the question arises as to whether, assuming the alleged agreement was not supported by a lawful consideration, it nevertheless constituted an offer on the part of defendants to sell the property to plaintiff in accordance with its terms; and assuming it had the latter effect, the further question arises as to whether the plaintiff, prior to any withdrawal of the offer, accepted it in manner and form entitling him to specific performance.

It is axiomatic, of course, that summary judgment should not be granted if there exists any controverted issue of material fact, and that all inferences of fact deductible from the proofs must be drawn against the movant and in favor of the adverse party. Harrison v. McCourtney, 148 So.2d 53 (Fla.App.1962); Card v. Commercial Bank, 119 So.2d 404 (Fla.App.1960); Majeske v. Palm Beach Kennel Club. 117 So.2d 531 (Fla.App.1959). It is also fundamental that when depositions or affidavits in support of a motion for summary judgment suggest factual conflicts or present a situation on which a finder of fact might properly draw varied conclusions from the record presented, summary judgment may not be granted. Lewis v. Tyner, 125 So.2d 328 (Fla.1960); Fla. R.C.P. 1.36(c), 30 F.S.A.

The proofs on the motion for summary judgment fairly reflect that a prior option to purchase between the same parties and involving the same property had expired according to its own limitations; that plaintiff, acting by and through his agent, William M. Parker, a real estate broker or salesman who had represented him and others as broker in a sale of the subject property to defendants, negotiated with defendnts the 'agreement' in question on this appeal; that plaintiff had no contact whatever with defendants in procuring the alleged agreement dated June 20, 1961; and that Parker was not an agent of defendants in the premises. The 'agreement' recites a consideration of $10.00 paid by plaintiff to defendants for an option to purchase the subject property in accordance with the terms and conditions therein stated. It provided that if the option is not exericsed and the conditions of the agreement fully performed by the plaintiff, and written notice of such exercise and performance given to defendants on or before June 20, 1962, the 'privilege [to purchase] shall thereupon wholly cease.'

The deposition of plaintiff's agent, Mr. parker, reflects that no consideration was given to support the alleged agreement. He specifically stated that no sum of money passed to defenants in the premises, as recited by the instrument, and upon being examined by counsel for plaintiff, the following colloquy occurred:

'Q. A while ago, you answered a question in regard to the consideration for the option, or the options given to the Bennetts, and you said there was no consideration, to your knowledge. Earlier in your testimony you testified that the whole crux of this agreement was that there would be no sale unless there was an otpion?

'A. I was speaking in forms of currency.

'Q. Currency.

'A. I presume that that is what Mr. Davenport [counsel for defendants] was referring to.'

He then testified that the purpose of negotiating the alleged agreement was to provide him with a longer period to purchase the property than was available under the former option agreement. Contrary to the general import of the deposition of defendant Lee E. Koplin, plaintiff stated that it was not the purpose of the 'option agreement' to put himself in position to trade the bubject property for property which he was interested in procuring from the county or government. He emphasized that he had no personal contact with defendants in the premises until the night prior to the date the alleged option was due to expire, at which time he had transactions with them upon which the relies as constituting an exercise of the alleged option to purchase. In referring to his dealings with his agent, the real estate dealer, plaintiff stated: '* * * I thought I made it clear to Mr. Parker, although I was very definitely telling him what I wanted to do with the land * * * that this option contract was not to swing on the government's assent to the exchange.' And again: '* * * I never did mean to leave the impression with Mr. Parker that the whole option contract was to swing on a final answer on that, because you know in politics, things are never final. Administrations change, etc.'

Upon being asked what consideration he gave for the alleged option agreement in suit, plaintiff stated, in substance, that when he and his mother sold the subject property to the defendants there was a problem concerning the use indiscriminately by the public of an area in front of the Reef Motel, the motel being separate property in which plaintiff has an interest; and he stated cryptically that there is a triangular parcel just west of the motel 'which was to be the subject of a proposed exchange,' thus lending credence to defendants' contention that at some point along the way a swap or exchange of the subject property was in the offing or contemplated by plaintiff. In responding to a question regarding the consideration for the alleged contract the plaintiff said:

'And when you asked the consideration for this contract--the option contract, * * *--the sole consideration for this option contract, at least the paramount consideration was that my mother was completely totally unwilling...